What has happened
Three and a half years after the disclosure pilot was introduced, it will become a permanent part of the Civil Procedure Rules in the Business and Property Courts in London (and some regional centres) as a new Practice Direction, PD 57AD. The Practice Direction, which will be introduced from 1 October 2022, will apply to most claims subject to the same limited exceptions as applied during the disclosure pilot. Some changes to the existing disclosure pilot rules, which will be introduced at the same time, are set out here and briefly touched upon below. The disclosure rules contained in CPR Part 31 will continue to apply in other relevant parts of the English civil courts.
A successful pilot
The disclosure pilot was introduced with an aim to combat various concerns about the existing disclosure regime in the modern, digital world of commercial disputes where there is a significantly increased amount of “big data”. It was recognised that the disclosure process could often be a wide-ranging and very costly exercise. The pilot aimed to make the process of disclosure more flexible, tailored and proportionate while keeping the "cards on the table approach" that is key to English litigation.
The pilot has been subject to continuous feedback and refinement over its lifespan to ensure that it meets its aims. Welcome earlier improvements include recognition that a bespoke approach by the courts is likely to be needed for multi-party claims, changes to streamline agreeing the list of issues for disclosure, and the introduction of a more straightforward disclosure regime for “Less Complex Claims” (a separate, simpler disclosure regime for some claims).
Despite the extensive reforms and significant cultural shift embodied in the pilot receiving some initial criticism, the benefits of the new approach have been recognised. These include ensuring that parties are considering the key issues in the case and the most effective and proportionate way of conducting the disclosure process at a much earlier stage in proceedings, hopefully allowing the court to make a more focused order that is tailored to the needs of the case, avoiding unnecessary disclosure and therefore unnecessary cost.
Although this has resulted in the front-loading of disclosure-related costs to an extent, it seems, anecdotally, that there has been a decline in the number of post-disclosure applications seeking further documents at later stages of the litigation process. The aim is for earlier engagement by the parties and close judicial control of the process to make disclosure a more proportionate and effective exercise.
Summary of key changes from the disclosure pilot
Amongst other changes to the current regime, the new Practice Direction:
makes clear that the new regime does not apply to Part 8 claims unless otherwise ordered;
clarifies when known adverse documents should be disclosed;
provides additional guidance regarding the approach that should be adopted when formulating issues for disclosure;
confirms that a disclosure certificate may be signed by the party's legal representative, provided that the legal representative has explained the significance of the disclosure certificate to their client and has been given written authority to sign the disclosure certificate on the client's behalf. The party will be deemed to have agreed to, and be bound by, the certifications given by their legal representative; and
increases the claim value below which (unless the other specified factors indicate otherwise) claims should be treated as "Less Complex Claims” from £500,000 to £1 million.
The new Practice Direction will come into force on 1 October 2022, subject to ministerial approval. While the courts have tried to avoid unnecessary satellite litigation during the pilot and strongly encourage greater co-operation between parties, a further period of time may be needed for litigants to adjust fully to the change in approach and for the courts to clarify any ambiguities in the application of the amended rules. As with current litigation in the Business and Property Courts, the key takeaway from a client perspective is that parties need to think carefully about their disclosure obligations, and what disclosure they want or need from their opponents, at a much earlier stage in the litigation process – we are here to help with that.
If you have any questions or would like to know how the changes may affect active or future litigation for your organisation, please contact your litigation contacts at Hogan Lovells.
Authored by John Tillman, Emma Childs and Amy Harding.